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State Sovereign Immunity: Originalist Challenges and Will Baude’s New Article

One of the difficult areas for originalism involves state sovereign immunity. The Supreme Court, in a series of 5-4 decisions joined by the two originalist justices as well as the three other more conservative justices, has held that such immunity is protected by the Constitution. This is problematic, because it is not clear what constitutional text provides that protection. And certainly the 11th Amendment, upon which the Court has often relied, does not do so.  The 11th Amendment only applies when a citizen of one state sues a different state, not when a citizen of one state sues his own state. So how can these originalists justices legitimately protect sovereign immunity?

Perhaps they cannot, but various originalists have tried. Earlier in my career, I wrote a paper that sought to textually justify sovereign immunity and other state immunities based on original public meaning of the term “state.” I argued that the Constitution used the term “state” to describe the original states and that the meaning of the term at the time signified a political entity that possessed various sovereign attributes. I then contended that the term “state” could be read as protecting certain attributes of state sovereignty.

In writing the article, I wavered back and forth between thinking it was the correct original meaning or merely the best argument for the Court’s decisions. One weakness of my interpretation, as Will Baude points out in the article discussed below, is that it places a great deal of weight on the single word “state.”

When I was writing the article, I also considered the possibility of reading the term “state” in conjunction with the Necessary and Proper Clause. At the time, I was exploring a view of the Clause that read it as not permitting the use of means that were inconsistent with the structure or spirit of the Constitution. As John Marshall wrote about the Clause in McCulloch v. Maryland,

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

If the term state recognized state sovereignty, then one might read that sovereignty as part of the constitutional structure. Therefore, a means of implementing a power that conflicted with state sovereignty might be unconstitutional. While I initially had a footnote mentioning it in the article, I cannot find it in the published draft and so I must have removed it prior to publication.

I thought of my paper when reading Will Baude’s new article on sovereign immunity. Baude defends such immunity on the ground that it is a backdrop – a common law (or other nonconstitutional rule) that continues to exist and that no entity has the power to displace. Baude argues that sovereign immunity was a common law rule at the time of the Constitution’s enactment.  While a common law rule can ordinarily be overturned by the legislature, Baude contends that Congress does not have the power to displace this one. The reason is that, in Baude’s view, the Necessary and Proper Clause cannot be used to exercise “a great power.” The purpose of the Clause was to supply general authority to implement the enumerated powers, but the Framers would not have left very significant powers – Great Powers – to be found under this clause. Instead, they would have specifically listed such powers as a enumerated power. After all, one does not hide elephants in mouseholes. Baude claims that eliminating the traditional sovereign immunity of states might be a great power and therefore not something Congress could do under the Necessary and Proper Clause.

Baude’s argument is an interesting one, and connects up with his other work on the Necessary and Proper Clause.  But just as I believed that the term “state” helped with my own interpretation of the Necessary and Proper Clause, I also believe that it helps with Baude’s argument. One difficult question for Baude’s view is how to determine whether something is a great power. If states were understood as sovereign entities, and that understanding was placed in the constitutional text, then that provides additional support for concluding that eliminating state immunities involves a great power.

The attempt to understand and justify sovereign immunity has been difficult. We are getting closer to understanding it. Baude’s paper is a significant step in that direction.

Reader Discussion

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on May 04, 2018 at 15:40:41 pm

The obvious originalist, although not textualist I suppose argument goes like this. In Chisholm, the Court faced the question, "under this Constitution do states have sovereign immunity" when a case crosses state lines. The majority of the Court concluded the answer is no. The states thought the Court misunderstood what the people had ratified, so they rushed through the 11th Amendment to overturn Chisholm. Massachusetts even held a special legislative session to rush passage of the amendment. (See Nathaln Coleman's book.) And if the overwhelming consensus of the 1790s is that the U.S. Constitution did not trump sovereign immunity in a case that crossed state lines, so much more so should the original understanding be that a state would have immunity in a case that is not interstate. It might very well be that James Wilson was right that ending sovereign immunity was more consistent with the principles of 1776, but that does not mean the people who ratified the constitution believed that they had taken away sovereign immunity of the states when they ratified the Constitution.

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Richard Samuelson
on May 04, 2018 at 21:08:16 pm

Interesting discussion, including the contributed commentary.

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Paul Binotto
on May 06, 2018 at 11:55:07 am

The concept of sovereign immunity was certainly a part of the common law when it was imported from England into the American Colonies, but the foundation of that doctrine lay in a conception of the relationship between government (the sovereign, i.e., a king who held the right of rule as a matter of divine right, and thus was incapable of error) and its subjects, who were in all matters subordinate to the sovereign, which is fundamentally at odds with the ideals of the American revolution. The most basic principle of American Constitutional government is that Americans are CITIZENS, not SUBJECTS, and that government derives its power not from any divine ordination, but from the consent of the governed. In my opinion, the argument that sovereign immunity was based on long established practice in the common law fails, not because the argument is false, but because it ignores the fact that this particular doctrine of common law is founded upon a conception of government completely alien to that which was established in the Constitution.

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Daniel Artz
on May 06, 2018 at 12:44:09 pm

So let's turn Baude's far too *clever* argument deploying the N&P Clause on its head and proclaim that sovereing immunity is not a great power under his meaning simply because the REAL underlying Constitutional *postualte* is CONSENT OF THE GOVERNED - not state sovereign immunity. If we must seek answers by searching in the "ether" of COTUS, let us at least capture the "vapors" of the spirit of '76 and not the foul emanations of a displaced sovereign ruler.

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gabe
on May 06, 2018 at 15:55:19 pm

Sovereign immunity is one of those very odd historical anachronisms that has outlived any rational basis for its existence. It also happens to be one of the very few legal disputes (maybe the only one) in which I find myself in complete agreement with Erwin Chemerisky (in any number of other areas, my take is that Chemerisky is a complete fool). Chemerisky wrote a very good article (in my opinion) in 2001, published in the Stanford Law Review, on the historical antecedents of sovereign immunity and why it never made sense under the Constitution. And while some scholars point to the Eleventh Amendment as support for the notion that States should be immune from suit, that ignores the political forces behind the 11th Amendment, States with large unpaid debts from the Revolutionary War that simply did not want to be forced to pay those debts. There have been other good articles on the historical antecedents of sovereign immunity, as well as solid scholarship in the field of English law in general by scholars such as Pollock and Maitland (A History of English Law From the Time of Edward I), Blackstone, and others. Sovereign immunity was simply a corollary to the maxim that “the King can do no wrong”. But prior to Edward I, that immunity was only a personal immunity which precluded suits against the King. It wasn’t until later that its scope was expanded to immunize the King’s ministers and agents, and even then there were exceptions for any act which constituted an egregious violation of a subject’s rights. Some States today provide an exception to sovereign immunity when the government involves itself in what might otherwise be a commercial enterprise; if you can sue a private water company that sells residential water to its customers, there is no valid reason to grant immunity to a municipal water system. And, when the government causes harm by violating your Constitutional rights, whether through an improper seizure in violation of the 4th or 5th Amendments (i.e., civil asset forfeiture when no crime is charged), improper detention (like a pretxtual traffic stop when no traffic violation has occurred), or violating your First Amendment rights by wrongfully arresting you and seizing your cell phone for taking video of a traffic stop, using sovereign immunity to prevent the injury from being compensated is just wrong.

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Daniel Artz
on May 06, 2018 at 15:56:36 pm

Sorry, I meant Chemerinsky. Failed to proofread.

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Daniel Artz

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